Citation NR: 9712851
Decision Date: 04/15/97 Archive Date: 04/29/97
DOCKET NO. 93-12 870 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUES
1. Entitlement to a compensable rating for a liver disorder.
2. Entitlement to service connection for a back disorder, to
include a disc disorder and paresthesia of both lower
extremities.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Michael J. Skaltsounis, Associate Counsel
INTRODUCTION
The veteran had active service from August 1969 to June 1973.
This matter was before the Board in April 1995 and was
remanded for further development.
REMAND
Initially, the Board of Veterans’ Appeals (Board) notes that
in its supplemental statement of the case, dated in July
1996, the regional office (RO) evaluated the evidence from
the two most recent Department of Veterans Affairs (VA)
medical examinations, one performed in June 1996, and a
second one performed in July 1996. The Board observes that
in evaluating this evidence, the RO discussed the results of
both examinations concurrently, and unfortunately extracted
an incomplete diagnosis from the report for the July 1996
examination. More specifically, after it noted the physical
examination findings from both examinations, the RO combined
the diagnoses from each report, and then provided the
complete diagnosis from the June 1996 examination only. It
also implied that there was only one examiner for both
examinations when it referred to the “examiner’s” opinion.
The record reflects that there was a different examiner for
each VA examination, and while the examiner at the June 1996
reached the opinion that the veteran’s back complaints could
not be related to the automobile accident which occurred in
service in 1972, and that the back pain was reported as
becoming active only after 1980, the examiner in the July
1996 examination reached the opinion that it was doubtful
that “all” of the veteran’s back complaints were related to
the service accident in 1972, as it was just as possible that
his back complaints could have stemmed from his falls while
employed as a painter. On the July 1996 examination report,
the examiner went on to add an addendum which noted, in
essence, that the force of the accident in 1972 was severe
enough to cause a liver laceration so it could have also
caused the veteran’s back problem, although he added that in
view of the veteran’s apparent problems as a painter it was
impossible to say which one caused his present problems.
While the record reflects that the service representative is
already aware of the complete and correct diagnosis from the
July 1996 examination, the Board finds that due process
mandates the complete reporting and evaluation of this highly
probative evidence with appropriate notice to the appellant.
The confusion arising in the realm of the due process
considerations in this matter is perhaps simply reflective of
a deeper underlying problem. While the June 1996 examiner
appears to clearly rule out a nexus between current
disability and injury in service, the July 1996 examiner
seems to provide two contradictory, or at least ambiguous,
opinions. One opinion is that it is doubtful that “all” of
the current back problems are related to service, which thus
leaves open the question as to whether “any” current back
problems relate to service and assuming so, which of several
problems are related to service. The second opinion appears
to hypothecate that the evidence that an accident severe
enough to cause a liver laceration could suggest that the
injury could also cause a back problem, but that it was
“impossible” to say whether post service on inservice injury
caused the current back disorder. The Board finds this
opinion is too ambiguous to determine whether or not a causal
nexus exists. Given these circumstances, the Board finds
that the record is inadequate to resolve the determinative
question and that further development is warranted on that
basis.
In light of the above, to ensure that the VA has met its duty
to assist the claimant in developing the facts pertinent to
the claim and to ensure full compliance with due process
requirements, the case is REMANDED to the RO for the
following development:
1. The veteran should be asked to
identify any sources of recent pertinent
medical treatment for his back and liver
disorders. Any medical records other
than those now on file pertaining to
these disabilities should be obtained and
associated with the claims folder. The
veteran is also free to submit any
additional evidence or argument on the
issues on appeal.
2. The RO should arrange for a VA
examination by an appropriate examiner in
order to determine the nature and
severity of the veteran’s liver disorder.
All indicated testing should be
conducted. The claims folder and a copy
of this remand must be made available to
the physician for review in conjunction
with the examination. The examiner
should record pertinent medical
complaints, symptoms, and clinical
findings, and comment on the functional
limitations, if any, caused by the
appellant’s service-connected disability.
3. The RO should attempt to secure
clarification from the VA physician who
examined the veteran in July 1996 as to
the degree of medical probability that
the veteran now has a back disability
which is causally related to service,
including the automobile accident in
which he sustained a liver laceration.
If the examiner can not render an opinion
on this question without resort to
speculation, he or she should so
indicate. The claims folder and a copy
of this remand should be made available
to the physician for review in
formulating the response to this
question. If the physician believes that
a new examination of the appellant would
be useful in rendering this opinion, it
should be so arranged. If the same
physician is not available, the RO is
respectfully requested to arrange for
another examination and for the physician
who performs the examination to express
an opinion as to the question noted
above.
4. Following the above, the RO should
review the examination reports and assure
that all requested information has been
provided. If not, the examination should
be returned as inadequate for rating
purposes. 38 C.F.R. § 4.2 (1996).
5. Thereafter, the RO should again
review the record. If the benefits
sought on appeal remain denied, the
appellant should be furnished a statement
of the case and given the opportunity to
respond thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board
intimates no opinion as to the ultimate outcome as to this
issue. The appellant need take no action until otherwise
notified.
RICHARD B. FRANK
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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